Opinion · Supreme Court of the United States

Wisconsin v. Mitchell

113 S. Ct. 2194

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1993-06-11
Topic
general

holding that conduct not targeted on the basis of its expressive content may be regulated under Title VII | recognizing that sentencing judges have traditionally “considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant” | holding that “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment” | recognizing that federal courts “are bound by a state court’s construction of a state statute” | recognizing that federal courts “are bound by a state court’s construction of a state statute” | holding that a minor or speculative chilling effect does not trigger First Amendment scrutiny | holding that a minor or speculative -chilling effect does not trigger First Amendment scrutiny | holding that the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent” | holding product's labeling may be used to infer its intended use and, thus, whether it is an unapproved drug under FDCA | distinguishing between punishment of defendant's "criminal conduct" and penalty enhancement "for conduct motivated by a discriminatory point of view" (emphasis added) | distinguishing between punishment of defendant’s “criminal conduct” and penalty enhancement “for conduct motivated by a discriminatory point of view” (emphasis added) | stating that the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent” | noting that Title VII, which prohibits discrimination in employment, is “a permissible content-neutral regulation of conduct” | concluding First Amendment "does not prohibit the use of speech to establish ... intent” | noting that “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment” | stating that conduct that is thought to inflict greater individual and societal harm may be punished more severely | noting that conduct not targeted on the basis of its expressive content may be regulated under Title VII | stating that “the defendant’s motive for committing the offense is one important factor” | explaining that “[t]he First Amendment ... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent” | finding that statute increasing penalty for selecting target of crime based on race, religion, color, disability, sexual orientation, national origin, or ancestry of person "is aimed at conduct unprotected by the First Amendment" | finding that statute increasing penalty for selecting target of crime based on race, religion, color, disability, sexual orientation, national origin, or ancestry of person “is aimed at conduct unprotected by the First Amendment” | recognizing U.S. Supreme Court is bound by state’s highest court’s interpretation of state statute | declining to be bound by state court's characterization of state law's "operative effect" | declining to be bound by state court’s characterization of state law’s “operative effect” | discussing the constitutionality of Title VII’s motive requirement and upholding a statute that enhances sentences for crimes motivated by racial bias | noting that Title VII is a permissible content-neutral regulation of conduct | noting that Title VII is a permissible content-neutral regulation of conduct | upholding use of speech to determine that defendant selected battery victim because of his race, for purposes of statutory sentence enhancement | upholding Wisconsin law enhancing sentence for aggravated battery because defendant intentionally selected victim because of race | noting that chilling effect and over-breadth are linked concepts | noting motive plays a role in federal and state antidiscrimination laws, which are constitutional | holding statute enhancing punishments for crimes committed because of race did not viol

Citator

Cited by
191 opinions
WISCONSIN v. MITCHELL,508 U.S. 476(1993)
113 S.Ct. 2194
WISCONSIN v. MITCHELL
CERTIORARI TO THE SUPREME COURT OF WISCONSIN
No. 92-515
Argued April 21, 1993
Decided June 11, 1993
Pursuant to a Wisconsin statute, respondent Mitchell's sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim's race. The State Court of Appeals rejected his challenge to the law's constitutionality, but the State Supreme Court reversed. Relying onR.A.V. v. St. Paul,505 U.S. 377, it held that the statute violates theFirst Amendmentby punishing what the legislature has deemed to be offensive thought and rejected the State's contention that the law punishes only the conduct of intentional victim selection. It also found that the statute was unconstitutionally overbroad because the evidentiary use of a defendant's prior speech would have a chilling effect on those who fear they may be prosecuted for offenses subject to penalty enhancement. Finally, it distinguished antidiscrimination laws, which have long been held constitutional, on the ground that they prohibit objective acts of discrimination, whereas the state statute punishes the subjective mental process.Held:Mitchell'sFirst Amendmentrights were not violated by the application of the penalty-enhancement provision in sentencing him. Pp. 483-490.
(a) While Mitchell correctly notes that this Court is bound by a state court's interpretation of a state statute, the State Supreme Court did not construe the instant statute in the sense of defining the meaning of a particular word or phrase. Rather, it characterized the statute's practical effect forFirst Amendmentpurposes. Thus, after resolving any ambiguities in the statute's meaning, this Court may form its own judgment about the law's operative effect. The State's argument that the statute punishes only conduct does not dispose of Mitchell's claim, since the fact remains that the same criminal conduct is more heavily punished if the victim is selected because of his protected status than if no such motive obtains. Pp. 483-485.
(b) In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant's motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant's abstract beliefs, however obnoxious to most people, the Constitution does not erect apersebarrier to the admission of evidence concerning one's beliefs andPage 477associations at sentencing simply because they are protected by theFirst Amendment.Dawson v. Delaware,503 U.S. 159;Barclay v. Florida,463 U.S. 939(plurality opinion). ThatDawsonandBarclaydid not involve the application of a penalty-enhancement provision does not make them inapposite.Barclayinvolved the consideration of racial animus in determining whether to sentence a defendant to death, the most severe "enhancement" of all; and the state legislature has the primary responsibility for fixing criminal penalties. Motive plays the same role under the state statute as it does under federal and state antidiscrimination laws, which have been upheld against constitutional challenge. Nothing inR.A.V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by theFirst Amendment. Moreover, the State's desire to redress what it sees as the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders' beliefs or biases. Pp. 485-488.
(c) Because the statute has no "chilling effect" on free speech, it is not unconstitutionally overbroad. The prospect of a citizen suppressing his bigoted beliefs for fear that evidence of those beliefs will be introduced against him at trial if he commits a serious offense against person or property is too speculative a hypothesis to support this claim. Moreover, theFirst Amendmentpermits the admission of previous declarations or statements to establish the elements of a crime or to prove motive or intent, subject to evidentiary rules dealing with relevancy, reliability, and the like.Haupt v. UnitedStates,330 U.S. 631. Pp. 488-490.
169 Wis.2d 153,485 N.W.2d 807(1992), reversed and remanded.

REHNQUIST, C.J,, delivered the opinion for a unanimous Court.
James E. Doyle, Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs wasPaul Lundsten, Assistant Attorney General.Michael R. Dreebenargued the cause for the United States asamicus curiaeurging reversal. With him on the brief were Acting Solicitor General Bryson,Acting Assistant Attorneys General Keeneyand Turner, Kathleen A. Felton, and Thomas E. Chandler.Page 478Lynn S. Adelmanargued the cause for respondent. With him on the brief wereKenneth P. Casey and Susan Gellman.fn*Page 479
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Todd Mitchell's sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim's race. The question presented in this case is whether this penalty enhancement is prohibited by theFirstandFourteenth Amendments. We hold that it is not.

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartmentPage 480complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning" in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: "`Do you all feel hyped up to move on some white people?'" Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: "`You all want to fuck somebody up? There goes a white boy; go get him.'"Id. at 4-5. Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.

After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated battery. Wis. Stat. §§939.05and940.19(1m) (1989-1990). That offense ordinarily carries a maximum sentence of two years' imprisonment. §§ 940.19(1m) and 939.50(3)(e). But because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years under § 939.645. That provision enhances the maximum penalty for an offense whenever the defendant "[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person. . . ."Page 481§ 939.645(1)(b).1The Circuit Court sentenced Mitchell to four years' imprisonment for the aggravated battery.

Mitchell unsuccessfully sought postconviction relief in the Circuit Court. Then he appealed his conviction and sentence, challenging the constitutionality of Wisconsin's penalty-enhancement provision onFirst Amendmentgrounds.2The Wisconsin Court of Appeals rejected Mitchell's challenge,163 Wis.2d 652,473 N.W.2d 1(1991), but the Wisconsin Supreme Court reversed. The Supreme Court held that thePage 482statute "violates theFirst Amendmentdirectly by punishing what the legislature has deemed to be offensive thought."169 Wis.2d 153,163,485 N.W.2d 807,811(1992). It rejected the State's contention "that the statute punishes only the `conduct' of intentional selection of a victim."Id. at 164,485 N.W.2d at 812. According to the court, "[t]he statute punishes the "because of" aspect of the defendant's selection, thereasonthe defendant selected the victim, themotivebehind the selection."Ibid. (emphasis in original). And underR.A.V. v. St. Paul,505 U.S. 377(1992), "the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees."169 Wis.2d at 171,485 N.W.2d at 815.

The Supreme Court also held that the penalty-enhancement statute was unconstitutionally overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim because of the victim's protected status, the State would often have to introduce evidence of the defendant's prior speech, such as racial epithets he may have uttered before the commission of the offense. This evidentiary use of protected speech, the court thought, would have a "chilling effect" on those who feared the possibility of prosecution for offenses subject to penalty enhancement.See id. at 174,485 N.W.2d at 816. Finally, the court distinguished antidiscrimination laws, which have long been held constitutional, on the ground that the Wisconsin statute punishes the "subjective mental process" of selecting a victim because of his protected status, whereas antidiscrimination laws prohibit "objective acts of discrimination."Id. at 176,485 N.W.2d at 817.3

We granted certiorari because of the importance of the question presented and the existence of a conflict of authority among state highPage 483courts on the constitutionality of statutes similar to Wisconsin's penalty-enhancement provision,4506 U.S. 1033(1992). We reverse.

Mitchell argues that we are bound by the Wisconsin Supreme Court's conclusion that the statute punishes bigoted thought, and not conduct. There is no doubt that we are bound by a state court's construction of a state statute.R.A. V., supra, at 381;New Yorkv. Ferber,458 U.S. 747,769, n. 24 (1982);Terminiello v. Chicago,337 U.S. 1,4(1949). InTerminiello, for example, the Illinois courts had defined the term "`breach of the peace,'" in a city ordinance prohibiting disorderly conduct, to include "`stirs the public to anger . . . or creates a disturbance.'"Id. at 4. We held this constructionPage 484to be binding on us. But here the Wisconsin Supreme Court did not, strictly speaking, construe the Wisconsin statute in the sense of defining the meaning of a particular statutory word or phrase. Rather, it merely characterized the "practical effect" of the statute forFirst Amendmentpurposes.See169 Wis.2d at 166-167,485 N.W.2d at 813("Merely because the statute refers in a literal sense to the intentional `conduct' of selecting, does not mean the court must turn a blind eye to the intent and practical effect of the law — punishment of motive or thought"). This assessment does not bind us. Once any ambiguities as to the meaning of the statute are resolved, we may form our own judgment as to its operative effect.

The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell'sFirst Amendmentchallenge. To be sure, our cases reject the "view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea."United States v. O'Brien,391 U.S. 367,376(1968);accord, R.A.V., supra, at 385-386;Spence v. Washington,418 U.S. 405,409(1974) (per curiam);Cox v. Louisiana,379 U.S. 536,555(1965). Thus, a physical assault is not, by any stretch of the imagination, expressive conduct protected by theFirst Amendment.SeeRoberts v. United States Jaycees,468 U.S. 609,628(1984) ("[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection");NAACP v. Claiborne Hardware Co.,458 U.S. 886,916(1982) ("TheFirst Amendmentdoes not protect violence").

But the fact remains that, under the Wisconsin statute, the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motivePage 485obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates theFirst Amendmentby punishing offenders' bigoted beliefs.

Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant.See Payne v. Tennessee,501 U.S. 808820-821(1991);United States v. Tucker,404 U.S. 443,446(1972);Williams v. New York,337 U.S. 241,246(1949). The defendant's motive for committing the offense is one important factor.See1 W. LeFave A. Scott, Substantive Criminal Law § 3.6(b), p. 324 (1986) ("Motives are most relevant when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives");cf.Tison v. Arizona,481 U.S. 137,156(1987) ("Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished"). Thus, in many States, the commission of a murder or other capital offense for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute.See, e.g., Ariz. Rev. Stat. Ann. §13-703(F)(5) (1989); Fla. Stat. §921.141(5)(f) (Supp. 1992); Miss. Code Ann. §99-19-101(5)(f) (Supp. 1992); N.C. Gen. Stat. §15A-2000(e)(6) (1992); Wyo. Stat. §6-2-102(h)(vi) (Supp. 1992).

But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.Dawson v. Delaware,Page 486503 U.S. 159(1992). InDawson, the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang. Because "the evidence proved nothing more than [the defendant's] abstract beliefs," we held that its admission violated the defendant'sFirst Amendmentrights.Id. at 167. In so holding, however, we emphasized that "the Constitution does not erect aper sebarrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by theFirst Amendment."Id. at 165. Thus, inBarclay v. Florida,463 U.S. 939(1983) (plurality opinion), we allowed the sentencing judge to take into account the defendant's racial animus towards his victim. The evidence in that case showed that the defendant's membership in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man for which he was convicted.See id. at 942-944. Because "the elements of racial hatred in [the] murder" were relevant to several aggravating factors, we held that the trial judge permissibly took this evidence into account in sentencing the defendant to death.Id. at 949, and n. 7.

Mitchell suggests thatDawsonandBarclayare inapposite because they did not involve application of a penalty-enhancement provision. But inBarclaywe held that it was permissible for the sentencing court to consider the defendant's racial animus in determining whether he should be sentenced to death, surely the most severe "enhancement" of all. And the fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across the board does not alter the result here. For the primary responsibility for fixing criminal penalties lies with the legislature.Rummel v. Estelle,445 U.S. 263,274(1980);Gore v. United States,357 U.S. 386,393(1958).Page 487

Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge.See Roberts v.United States Jaycees,468 U.S. at 628;Hishon v. King Spalding,467 U.S. 69,78(1984);Runyon v. McCrary,427 U.S. 160,176(1976). Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee "becauseof such individual's race, color, religion, sex, or national origin."42 U.S.C. § 2000e-2(a)(1) (emphasis added). InHishon, we rejected the argument that Title VII infringed employers'First Amendmentrights. And more recently, inR.A.V. v. St. Paul,505 U.S. at 389-390, we cited Title VII (as well as18 U.S.C. § 242and42 U.S.C. § 1981and1982) as an example of a permissible content-neutral regulation of conduct.

Nothing in our decision last Term inR.A.V. compels a different result here. That case involved aFirst Amendmentchallenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'"505 U.S. at 391(quoting St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990). Because the ordinance only proscribed a class of "fighting words" deemed particularly offensive by the city —i.e., those "that contain . . . messages of `bias-motivated' hatred,"505 U.S. at 392we held that it violated the rule against content-based discrimination.See id. at 392-394. But whereas the ordinance struck down inR.A.V. was explicitly directed at expression (i.e., "speech" or "messages",id. at 392, the statute in this case is aimed at conduct unprotected by theFirst Amendment.

Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thoughtPage 488to inflict greater individual and societal harm. For example, according to the State and itsamici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.See, e.g., Brief for Petitioner 24-27; Brief for United States asAmicus Curiae13-15; Brief for Lawyers' Committee for Civil Rights Under Law asAmicus Curiae18-22; Brief for the American Civil Liberties Union asAmicus Curiae17-19; Brief for the Anti-Defamation Leagueetal. asAmici Curiae910; Brief for Congressman Charles E. Schumeret al. asAmici Curiae8-9. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16.

Finally, there remains to be considered Mitchell's argument that the Wisconsin statute is unconstitutionally overbroad because of its "chilling effect" on free speech. Mitchell argues (and the Wisconsin Supreme Court agreed) that the statute is "overbroad" because evidence of the defendant's prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim's protected status. Consequently, the argument goes, the statute impermissibly chills free expression with respect to such matters by those concerned about the possibility of enhanced sentences if they should, in the future, commit a criminal offense covered by the statute. We find no merit in this contention.

The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional "overbreadth" cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that, if he later commits an offense covered by the statute,Page 489these opinions will be offered at trial to establish that he selected his victim on account of the victim's protected status, thus qualifying him for penalty-enhancement. To stay within the realm of rationality, we must surely put to one side minor misdemeanor offenses covered by the statute, such as negligent operation of a motor vehicle (Wis. Stat. §941.01(1989-1990)), for it is difficult, if not impossible, to conceive of a situation where such offenses would be racially motivated. We are left, then, with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is simply too speculative a hypothesis to support Mitchell's overbreadth claim.

TheFirst Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, inHaupt v. United States,330 U.S. 631(1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, § 3), may depend very much on proof of motive. To prove that the acts in question were committed out of "adherence to the enemy" rather than "parental solicitude,"id. at 641, the Government introduced evidence of conversations that had taken place long prior to the indictment, some of which consisted of statements showing Haupt's sympathy with Germany and Hitler and hostility towards the United States. We rejected Haupt's argument that this evidence was improperly admitted. While "[s]uch testimony is to be scrutinized with care to be certain the statements are not expressions of mere lawful and permissible difference of opinion with our own government or quite proper appreciation of the land of birth, "we held that "these statements . . .Page 490clearly were admissible on the question of intent and adherence to the enemy."Id. at 642. See alsoPrice Waterhouse v. Hopkins,490 U.S. 228,251-252(1989) (plurality opinion) (allowing evidentiary use of defendant's speech in evaluating Title VII discrimination claim);Street v. New York,394 U.S. 576,594(1969)

For the foregoing reasons, we hold that Mitchell'sFirst Amendmentrights were not violated by the application of the Wisconsin penalty-enhancement provision in sentencing him. The judgment of the Supreme Court of Wisconsin is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.Page 491
  1. Page 478 Briefs ofamici curiaeurging reversal were filed for the State of Ohio et al. byLee Fisher, Attorney General of Ohio,Andrew S. Bergman, Assistant Attorney General, andSimon B. Karas,John Payton, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows:James H. Evansof Alabama,Charles E. Coleof Alaska,Grant Woodsof Arizona,Winston Bryantof Arkansas,Daniel E. Lungrenof California,Gale A. Nortonof Colorado,Richard Blumenthalof Connecticut,Charles M. Oberly IIIof Delaware,Robert A.Butterworthof Florida,Michael J. Bowersof Georgia,Robert A.Marksof Hawaii,Larry EchoHawkof Idaho,Roland W. Burrisof Illinois,Pamela Carterof Indiana,Bonnie J. Campbellof Iowa,Robert T. Stephanof Kansas,Chris Gormanof Kentucky,Richard P.Ieyoubof Louisiana,Michael E. Carpenterof Maine,J. JosephCurran, Jr., of Maryland,Scott Harshbargerof Massachusetts,FrankJ. Kelleyof Michigan,Hubert H. Humphrey IIIof Minnesota,MikeMooreof Mississippi,Jeremiah W. Nixonof Missouri,Joseph P.Mazurekof Montana,Don Stenbergof Nebraska,Frankie Sue Del Papaof Nevada,Jeffrey R. Howardof New Hampshire,Robert J. Del Tufoof New Jersey,Tom Udallof New Mexico,Robert Abramsof New York,Michael F. Easleyof North Carolina,Heidi Heitkampof North Dakota,Susan B. Lovingof Oklahoma,Theodore R. Kulongoskiof Oregon,Ernest D. Preate, Jr., of Pennsylvania,Jeffrey B. Pineof Rhode Island,T. Travis Medlockof South Carolina,Mark Barnettof South Dakota,Charles W. Bursonof Tennessee,Dan Moralesof Texas,Jan Grahamof Utah,Jeffrey L. Amestoyof Vermont,Mary Sue Terryof Virginia,Christine O. Gregoireof Washington,Daryl V. McGrawof West Virginia, andJoseph B. Myerof Wyoming; for the city of Atlanta et al. byO. Peter Sherwood, Leonard J. Koerner, LawrenceS. Kahn, Linda H. Young, Burt Neuborne, Norman Dorsen, Neal M.Janey, Albert W. Wallis, Lawrence Rosenthal, Benna Ruth Solomon,Julie P. Downey, Jessica R. Heinz, Judith E. Harris, Louise H.Renne, and Dennis Aftergut;for the American Civil Liberties Union bySteven R. ShapiroandJohn A. Powell;for the Anti-Defamation League et al. byDavid M. Raim, Jeffrey P. Sinensky, Steven M.Freeman, Michael Lieberman, and Robert H. Friebert;for the Appellate Committee of the California District Attorneys Association byGil GarcettiandHarry B. Sondheim;for the California Association of Human Rights Organizations et al. byHenry J. SilberbergandMark Solomon;for the Chicago Lawyers' Committee for Civil Rights Under Law, Inc., byFrederick J.Page 479SperlingandRoslyn C. Lieb;for the Criminal Justice Legal Foundation byKent S. Scheidegger;for the Crown Heights Coalition et al. bySamuel Rabinove, Richard T. Foltin, Kenneth S. Stern,Elaine R. Jones, and Eric Schnapper;for the Jewish Advocacy Center byBarrett W. Freedlander;for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area byRobert E. Borton;for the National Asian Pacific American Legal Consortium et al. byAngeloN. Ancheta;for the National Conference of State Legislatures et al. byRichard RudaandMichael J. Wahoske;and for Congressman Charles E. Schumer et al. bySteven T. CatlettandRichard A.Cordray.

    Briefs ofamici curiaeurging affirmance were filed for the American Civil Liberties Union of Ohio byDaniel T. KobilandBenson A. Wolman;for California Attorneys for Criminal Justice byRobert R. Riggs, John T. Philipsborn, and Dennis P. Riordan;for the Center for Individual Rights byGary B. Born and Michael P.McDonald;for the National Association of Criminal Defense Lawyers et al. byHarry R. Reinhart, John Pyle, Sean O'Brien, and WilliamI. Aronwald;for the Ohio Public Defender byJames Kura, Robert L.Lane, James R. Neuhard, Allison Connelly, Theodore A. Gottfried,Henry Martin, and James E. Duggan;for the Wisconsin Freedom of Information Council byJeffrey J. Kassel;for the Reason Foundation byRobert E. Sutton;for the Wisconsin Association of Criminal Defense Lawyers byIra Mickenberg;and for Larry Alexander et al. byMartin H. Redish.

    Briefs ofamici curiaewere filed for the Lawyers' Committee for Civil Rights Under Law byPaul Brest, Alan Cope Johnston,Herbert M. Wachtell, William H. Brown III, and Norman Redlich;and for the Wisconsin Inter-Racial and Inter-Faith Coalition for Freedom of Thought byJoan Kessler. ↩
  2. Page 480 At the time of Mitchell's trial, the Wisconsin penalty-enhancement statute provided:

    "(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

    "(a) Commits a crime under chs. 939 to 948.

    "(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property which is damaged or otherwise affected by the crime under par. (a) because of the race, religion, color,Page 481disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.

    "(2)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum period of imprisonment is one year in the county jail.

    "(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum period of imprisonment is 2 years.

    "(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years.

    "(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1).

    "(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime." Wis. Stat. §939.645(1989-1990). The statute was amended in 1992, but the amendments are not at issue in this case. ↩
  3. Page 481 Mitchell also challenged the statute onFourteenth Amendmentequal protection and vagueness grounds. The Wisconsin Court of Appeals held that Mitchell waived his equal protection claim, and rejected his vagueness challenge outright.163 Wis.2d 652,473 N.W.2d 1(1991). The Wisconsin Supreme Court declined to address both claims.169 Wis.2d 153,158, n. 2,485 N.W.2d 807,809, n. 2 (1992). Mitchell renews hisFourteenth Amendmentclaims in this Court. But since they were not developed below and plainly fall outside of the question on which we granted certiorari, we do not reach them either. ↩
  4. Page 482 Two justices dissented. They concluded that the statute punished discriminatory acts, and not beliefs, and therefore would have upheld it.See169 Wis.2d at 181,485 N.W.2d at 819(Abrahamson, J.);id. at 187-195, 485 N.W.2d at 821825 (Bablitch, J.). ↩
  5. Page 483 Several States have enacted penalty-enhancement provisions similar to the Wisconsin statute at issue in this case.See, e.g., Cal. Penal Code Ann. §422.7(West 1988 and Supp. 1993); Fla. Stat. §775.085(1991); Mont. Code Ann. § 45-5222 (1992); Vt. Stat. Ann., Tit.13, § 1455(Supp. 1992). Proposed federal legislation to the same effect passed the House of Representatives in 1992, H.R. 4797, 102d Cong., 2d Sess. (1992), but failed to pass the Senate, S. 2522, 102d Cong., 2d Sess. (1992). The state high courts are divided over the constitutionality of penalty-enhancement statutes and analogous statutes covering bias-motivated offenses.Compare, e.g., State v. Plowman,314 Or. 157,838 P.2d 558(1992) (upholding Oregon statute),with St. State v. Wyant,64 Ohio St.3d 566,597 N.E.2d 450(1992) (striking down Ohio statute);169 Wis.2d 153,485 N.W.2d 807(1992) (striking down Wisconsin statute). According toamici, bias-motivated violence is on the rise throughout the United States.See, e.g., Brief for the National Asian Pacific American Legal Consortiumet al. asAmici Curiae5-11, Brief for the Anti-Defamation Leagueet al. asAmici Curiae4-7; Brief for the City of Atlantaet al. asAmici Curiae3-12. In 1990, Congress enacted the Hate Crimes Statistics Act, Pub.L.101-275, § 1(b)(1),104 Stat. 140, codified at28 U.S.C. § 534(note) (1988 ed., Supp. III), directing the Attorney General to compile data "about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity." Pursuant to the Act, the Federal Bureau of Investigation reported in January, 1993, that 4,558 bias-motivated offenses were committed in 1991, including 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders.SeeBrief for the Crown Heights Coalitionet al. asAmiciCuriae1A-7A. ↩